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Published: Fri, 02 Feb 2018

The Bhopal Gas Tragedy

In this research paper I would like to explore the Bhopal Gas tragedy in a little detail. We would go through the main aspects of the whole disaster. It was a really horrific disaster and it is among the worst industrial disasters ever, if not the worst. And as we will see and realize at the end of the paper after going through all the details, is that it was avoidable and at the time of the disaster the conditions of the plant was such that the disaster had to happen.

At the beginning of the paper we will briefly go through the facts. I believe that this is necessary to get a clear idea about the whole thing.

Once we are through we’ll next go through a brief summary of the facts that have been singled out as the causes that lead to this disaster. We’ll also go though the issues that the causes raise like gross cost cutting, unsafe practices, lack of concern by the government and the non-compliance to standard safety requirements.

Then we’ll look into the affect the leaked gas had on the health of the people of the area. It highlights the suffering of the people and how the greed and indifference of some people have come to cause misery and misfortune for a lot of innocent people and their descendents.

The next issue that we’ll discuses is how the whole issue was taken up legally. We’ll trace the case since it begins in the U.S. Courts see why it was dismissed and how the government made itself the sole representative of the people and weight if this move was in the best interests of the people.

We’ll also contemplate about who is actually responsible for the disaster and who can we put the blame on. Is it the government or the Union Carbide Corporation or are both sides to be blamed?

We’ll also see if the settlement agreed upon a fair deal for the people or did Union Carbide get off cheap. It definitely appears so if we see the monetary amounts paid in subsequent industrial like the ‘Exxon oil spill’, 1989 where $860 million dollars were awarded to just around 38,000 people.

At last we see if the compensation machinery put into place to distribute the settlement amount is working efficiently and if the true victims are even getting the monetary compensation.

Introduction

The Bhopal gas disaster, which took place just after midnight on 3 December 1984, is undoubtedly the worst industrial accident in history. Forty tons of highly toxic methyl isocynate (MIC), which had been manufactured and stored in Union Carbide’s chemical plant in Bhopal, escaped into the atmosphere and was wind-borne directly towards the city center. Initial estimates put the death toll at 3.500 people, while over 200,000 were estimated injured. Today, many years after the tragedy, the Indian government officially puts the death toll at 2,500, while 2,800 have died since then from lingering effects of toxic exposure. Activists however, put the number at closer to 8,000 that night with an equal number subsequently. The lack of documentation of deaths that fetal night, the subsequent chaos in administering aid to the victims since then, and the ongoing disputes over causes of illness , deaths, and the number of sick and dead will never be accurately fixed. What is true is that the estimates, official and otherwise, can never convey the enormity of the human tragedy- the families communities disrupted, disabled, dislocated and impoverished then and those still suffer today. The numbers also fail to convey the anger, resignation, fear, and suffering of many thousands of survivors who continue to evidence patterns of psychological and physical damage through exposure to the initial gas and the lingering fears of unknown illnesses and future genetic mutation.

This disaster caused a lot of suffering and pain for the people of Bhopal. Who continue to suffer till this day and possibly for generations to come. In this part we go to explore the various ways in which the gases leaked from the site affected the health of the people living in that area. There were many ill affects some were the short term ones and the other were long term ones.

The Union Carbide India, Limited (UCIL) factory was established in 1969 near Bhopal. 50.9 % was owned by Union Carbide Corporation (UCC) and 49.1 % by various Indian investors, including public sector financial institutions. It produced the pesticide carbaryl (trademark Sevin). In 1979 a methyl isocyanate (MIC) production plant was added to the site. MIC, an intermediate in carbaryl manufacture, was used instead of less hazardous but more expensive materials. UCC understood the properties of MIC and its handling requirements.

During the night of December 2-3, 1984, large amounts of water entered tank 610, containing 42 tones of methyl isocyanate. The resulting exothermic reaction increased the temperature inside the tank to over 200 °C (392 °F), raising the pressure to a level the tank was not designed to withstand. This forced the emergency venting of pressure from the MIC holding tank, releasing a large volume of toxic gases into the atmosphere. The reaction sped up because of the presence of iron in corroding non-stainless steel pipelines. A mixture of poisonous gases flooded the city of Bhopal, causing great panic as people woke up with a burning sensation in their lungs. Thousands died immediately from the effects of the gas and many were trampled in the panic.

Theories of how the water entered the tank differ. At the time, workers were cleaning out pipes with water, and some claim that owing to bad maintenance and leaking valves, it was possible for the water to leak into tank 610. In December 1985 the New York Times reported that according to UCIL plant managers the hypothesis of this route of entry of water was tested in the presence of the Central Bureau Investigators and was found to be negative. UCC also maintains that this route was not possible, and that it was an act of sabotage by a “disgruntled worker” who introduced water directly into the tank. However, the company’s investigation team found no evidence of the necessary connection.

The 1985 reports give a picture of what led to the disaster and how it developed, although they differ in details. Factors leading to this huge gas leak include the use of hazardous chemicals (MIC) instead of less dangerous ones. The company stored these chemicals in large tanks instead of over 200 steel drums. There is also the possibility of corroding of the material in pipelines. Poor maintenance after the plant after it ceased production in the early 1980s is also a contributing reason. The failure of various several safety systems (due to poor maintenance and regulations) is one of the major and avoidable causes. The safety systems were also being switched off to save money, including the MIC tank refrigeration system which alone would have prevented the disaster. The design of the plant had also been modified by Indian engineers to abide by government regulations and economic pressures to reduce expenses contributed most to the actual leak. The problem was then made worse by the plant’s location near a densely populated area, non-existent catastrophe plans and shortcomings in health care and socio-economic rehabilitation. Analysis shows that the parties responsible for the magnitude of the disaster are the two owners, Union Carbide Corporation and the Government of India, and to some extent, the Government of Madhya Pradesh.

The short-term effects of the poisonous gases on the people was that the gases, which included not just MIC, and the gas cloud might have contained phosgene, hydrogen cyanide, carbon monoxide, hydrogen chloride, oxides of nitrogen, monomethyl amine (MMA) and carbon dioxide, either produced in the storage tank or in the atmosphere. These gases were denser than the surrounding air, and thus stayed close to the ground and spread outwards through the surrounding community. The initial effects of exposure were coughing, vomiting, severe eye irritation and a feeling of suffocation. People awakened by these symptoms fled away from the plant. Those who ran inhaled more than those who had a vehicle to ride. Owing to their height, children and other people of shorter stature inhaled higher concentrations. Many people were trampled trying to escape. Thousands of people had succumbed by the morning hours. There were mass funerals and mass cremations as well as disposal of bodies in the Narmada River. 170,000 people were treated at hospitals and temporary dispensaries. 2,000 buffalo, goats, and other animals were collected and buried. Within a few days, leaves on trees yellowed and fell off. Supplies, including food, became scarce owing to suppliers’ safety fears. Fishing was prohibited as well, which caused further supply shortages. A total of 36 wards were marked by the authorities as being “gas affected”, affecting a population of 520,000. Of these, 200,000 were below 15 years of age, and 3,000 were pregnant women. In 1991, 3,928 deaths had been certified. Independent organizations recorded 8,000 dead in the first days. Other estimations vary between 10,000 and 30,000. Another 100,000 to 200,000 people are estimated to have permanent injuries of different degrees. The acute symptoms were burning in the respiratory tract and eyes, blepharospasm, breathlessness, stomach pains and vomiting. The causes of deaths were choking, reflexogenic circulatory collapse and pulmonary oedema. Findings during autopsies revealed changes not only in the lungs but also cerebral oedema, tubular necrosis of the kidneys, fatty degeneration of the liver and necrotising enteritis. The stillbirth rate increased by up to 300% and neonatal mortality rate by 200 %.

The long-term effects were very severe and had far reaching consequences. The people of Bhopal are still suffering the consequences of the disaster. It is estimated that 20,000 have died since the accident from gas-related diseases. Another 100,000 to 200,000 people are estimated to have permanent injuries. The quality of the epidemiological and clinical research varies. Reported and studied symptoms are eye problems, respiratory difficulties, immune and neurological disorders, cardiac failure secondary to lung injury, female reproductive difficulties, and birth defects among children born to affected women. Other symptoms and diseases are often ascribed to the gas exposure, but there is no good research supporting this. There is a clinic established by a group of survivors and activists known as Sambhavna. Sambhavna is the only clinic that will treat anybody affected by the gas, or the subsequent water poisoning, and treats the condition with a combination of Western and traditional Indian medicines, and has performed extensive research. Union Carbide as well as the Indian Government long denied permanent injuries by MIC and the other gases. In January, 1994, the International Medical Commission on Bhopal (IMCB) visited Bhopal to investigate the health status among the survivors as well as the health care system and the socio-economic rehabilitation. The reports from Indian Council of Medical Research were not completely released until around 2003. For a review of the research on the health effects of the Bhopal disaster, see Dhara & Dhara (2002).

To ensure that claims arising out of the disaster were dealt with speedily, and in alarm over the onslaught of American personal injury lawyers that flocked to Bhopal immediately after the gas leak, the Parliament enacted the Bhopal Gas Leak Disaster (processing of Claims) Act in March, 1985 (The Bhopal Act). The Acct was held constitutional in a challenge by the survivor groups in December, 1989. The Bhopal Act conferred the exclusive right on the Indian government, acting as parens patriae, to represent all the claimants both within and outside India, and directed the government to organize a plan for the registration and processing of the victims’ claims.

In April 1985, shortly after the Bhopal Act was passed, the Indian government sued Union Carbide in the United States. The government’s preference for an American court stemmed from a lack of confidence in its own judicial system, the lure of large damages that an American jury might award, and its uncertainty about whether Carbide would submit to the jurisdiction of an Indian court, The American court, however, declined to try the Bhopal lawsuit, declaring that India was the more appropriate forum. Consequently, in September, 1986, nearly two years after the tragedy, the Indian government sued Carbide in the Court of the District Judge, Bhopal, for Rs. 3,900 crores (US$ 3billion) in damages.

The Bhopal case reached the Indian Supreme Court through the separate appeals of Carbide and the Indian government from the judgment of Justice Seth of Madhya Pradesh High Court. In April, 1988, Justice Seth awarded interim damages of Rs. 250 crores (US$ 192 million) on the basis of ‘more than a prima facie case having been made out’ against the defendant. Carbide’s lawyers claimed that the judgment was unsustainable because it amounted to a verdict without trial. The Indian government appealed because Justice Seth had reduced by 30 per cent District Judge Deo’s earlier interim payment award of Rs. 350 crores (US$ 270 million).

Surveying the Bhopal litigation in December 1988, the five judges Supreme Court bench must have been dismayed at the lack of progress in the principal lawsuit. The ineffectiveness of the Indian government’s maneuvers, combined with Carbide’s apparent disregard for the victims, had dimmed the victim’s hopes for early compensation. Proceedings in the original lawsuit before the Bhopal District Judge had stalled. Pretrial matters, such as discovery, had yet to be addresses. Four years after the tragedy, the government had yet to finalize its authentic claimants.

Rather than proceed rapidly with the trial of the original lawsuit and establish a legal claim on the Carbide’s American assets with a determinative final judgment, the government preferred to peruse a risky short-cut. Encouraged by an early suggestion of the Bhopal District Judge Deo, regarding an ‘interim’ award, the Attorney General of India’s main litigation strategy was the pursuit of such a pretrial award. More than a year had been consumed in appeals from the award. In separate proceedings additional efforts has been expended in a contempt of court action against Carbide, its Chairman and its lawyers. Indeed there was little in the governments’ handling of the Bhopal case that might have impressed the Supreme Court judges with the government’s capacity to devise legal strategies and introduce reformed trial procedures that could bring the Bhopal lawsuit to a swift conclusion.

On 14 February 1989, the Supreme Court brokered an overall settlement of the claims arising from the Bhopal disaster. Under the settlement, Carbide agreed to pay US$ 470 million to the Indian government on behalf of all the Bhopal victims in full and final settlement of all past, present and future claims, both civil and criminal, arising from the Bhopal disaster. The entire amount had to be and was paid by 31 March 1989. In addition, the Supreme Court exercised its extraordinary jurisdiction and terminated all civil, criminal and contempt proceedings that had arisen out of the Bhopal disaster and were pending in subordinate India courts.

In December, 1989, the Supreme Court of India, in a long-winded judgment, upheld the constructional validity of the Bhopal Act under which the Indian government gave itself the exclusive right to represent all Bhopal victims in civil litigation against Carbide. The court acknowledged that the Bhopal Act entitled the victims to notice and an opportunity to be heard on any proposed settlement, and the February 1989 settlement of US$ 470 million failed to give such notice and hearing. Nevertheless, the court concluded that in the special facts and circumstances of the case, ‘a post-decisional hearing would not be in the ultimate interest of justice.’ The court noted that the hearings to be held during the review of the settlement (in review petitions filled by some of the victims in the Supreme Court) afforded a ‘sufficient opportunity’ to the victims. The court rationalized its view by declaring; ‘to do a great right’ after all, it is permissible sometimes ‘to do a little wrong’.

The Bhopal disaster raised complex legal, moral and ethical questions about liability – of parent companies for their subsidiaries, of transnational companies engaged in hazardous activities, and of governments caught between attracting industry to invest in business development while simultaneously protecting the environment and citizens. This chapter explores aspects of the legal strategies and decisions involved in the Bhopal lawsuit. Different decisions of the American and Indian courts are summarized and the resulting behavior of the parties is presented from the time of the initial settlement through the fate of the victims today. We first approach the question of who was to blame and possible motivation for the behavior that led to the disaster. Next, we examine the legal and political issues surrounding the choice of forum. We explore the role of the Indian government, both as a party to the lawsuit and as a sovereign nation responsible for the well-being of its citizens. Finally, we examine the settlement itself, what it represents to the victims, and how effective it is in terms of compensation of the victims.

Who Is To Blame?

Many years after the Bhopal gas leak, the worst industrial catastrophe in history, it remains unclear who must bear legal responsibility. Yet the question of moral responsibility is easily answered if one enters JP Nagar, a slum with 60,000 inhabitants. Not 200 meters away is the tower from which MIC used to be burn off.

On 1 February, 1995; the Swiss Review of World Affairs took out a report titled ‘Bhopal: Ten Years Later’. In their report they explored the issue of who is to blame for the disaster. It tried to highlight that both the government and the Union Carbide Corporation are responsible. It shows that both parties were negligent and sometimes just indifferent and careless. There was a slum just next to the production and storage center of the highly poisonous substance. In the light of this it would be very difficult for anyone not to come to the conclusion that neither the Union Carbide Corporation, an American firm well known for the strict management of its worldwide branches, nor the Indian government, could have been ignorant of the fact that a densely populated area was located immediately adjacent to a hazardous production plant. And a review of the situation prior to the catastrophe shows that both of these main parties not only looked the other way, but knowingly accepted the risk.

Production of MIC first began at the Bhopal site in 1980, four years before the disaster. In the second year of operations there was an accident which promoted the workers’ union to protest against inadequate safety measures. In 1982, M.N. Buch, the administrator of the city of Bhopal, requested that the government of the state of Madhya Pradesh shift the fertilizer factory to a remote region. The request was denied. Carbide was not egger for such a move, since Bhopal’s central location in agrarian India was clearly advantageous for a fertilizer manufacturer. Then Arjun Sinsh, Chief Minister of Madhya Pradesh, did what most Indian politicians do with regards to the country’s many illegal squatter settlements: In 1983, he legalized the slum known as JP Nagar.

Investigation following the Bhopal catastrophe showed that the responsibility of both the company and the government went far beyond the mere neglect of elementary safety measures. In an analysis in the British trade publication ‘Project Management’, a UN expert enumerated 16 factory shortcomings, 13 operational errors, 19 failures in communication and 26 system shortcomings. Many of these were the fault of company management, but many were the government’s fault also.

Some of the ‘mistakes’ committed by a company of worldwide repute were astonishing: The cooling system which was supposes to keep the MIC at a temperature of zero degrees Celsius to prevent a reaction, had been turned off six months before the accident; the same held for the burner in the tower for burning off the poison. Both steps had been taken with the approval of company headquarters. The scrubbers capable of neutralizing MIC exhaust fumes had been placed in ‘passive mode’ two months before the disaster. The spray system designed to pull escaping MIC fumes to the ground by surrounding them in a water mist was effectively only to a height of 12 meters, but the MIC fumes were released at a height of 33 meters. The pipes attached to the MIC tanks were made of iron instead of the stainless steel called for by regulation; the iron ions in the rinse water were one of the major causes of the accident. The government authorities, responsible for monitoring adherence to safety regulations, had simply accepted management assurances that everything was in order. ‘Bhopal’, concludes the UN expert, ‘was a catastrophe waiting to happen’.

Notes And Questons

Why would Carbide have allowed such flagrant safety violations as detailed in the UN expert’s report?

Many volunteer organizations for the Bhopal victims have urged the Central Bureau of Investigation (CBI) to inspect carbide’s sister plant in Institute, West Virginia, to determine whether the safety standards are higher there. In fact, three such groups have petitioned an Indian court to order CBI to do. Is it likely to be a useful investigation at this point, so many years later? In May, 1984, the Institute plant’s safety system was completely revamped. Carbide had notified the United States Environmental Protection Agency of these changes, but not the Bhopal brunch of operations. If indeed the Carbide plant in Bhopal was operated at unacceptably low standards, who is to blame? Will not all industries in India take cheaper, easier cost cutting measures when allowed to do so? If industries in India were held to the same standards as industries in America, would Carbide have invested in the Bhopal operations? If industry would not regulate itself, and governments allowed low standards to ensure foreign investment, who does regulate industry? Who should?

Perhaps the most devastating testimony against both Carbide and the Indian government is that of T.R. Chouhan, a chemical plant operator who used to work in the factory and has studied in detail the causes and implications of the accident. His book ‘Inside the Killer Plant-A Bhopal Worker’s Story’ was published by Apex Press of New York in 1994. In his book, with the aid of charts, logs and chemical formulae, he alleges design faults, inadequate or non-existent safety measures, disregard of warning and cost-cutting at the expense of safety. He also details the company’s failure to divulge its research on the complex mixture of gases that escaped their effects on human organisms and the best antidotes or treatments.

Chouhan also accuses the government of ignoring the problem at Carbide’s Bhopal plant to a degree that smacks of cover-up, or at least a wish to sweep the problem under the carpet. Even though the CBI used Chouhan’s expertise to draw up charges against Carbide, Chouhan was transferred to a minor job as an industrial inspector in a small town 100 miles from his home in Bhopal. The CBI has been ordered three times to provide evidence of the government’s part in the disaster, yet it has not complied. However, criminal prosecutions, for homicide not amounting to murder, have been brought against eight Union Carbide India Limited employees. Considering the government’s role as exclusive plaintiff in all Bhopal disaster proceedings, is it conceivable that the government will ever be held accountable, or at least even be forced to explain, its role in the disaster?

Finally, one of the major themes of many of the protests and demonstrations by the victims has been the culpability of Warren Anderson, the CEO of Carbide at the time of the disaster. In fact, he was often burned in effigy. Why is it so much more popular for the victims to want the American CEO, rather than their own government leaders, brought to trial? How likely is it that prosecuting Anderson would prevent similar disasters in the future? Does it not make more sense to hold the Indian government accountable, thereby putting into place safeguards against future similar events?

The Forum

In a separate section of his 1998 order for interim compensation, High Court Justice Seth expressed the frustration of an Indian whose government had preferred the American System to its own in a section entitled, ‘A world About Unbecoming Stand Taken by Plaintiff-Union of India Before U.S. District Court’.

In 1993, the final wave of civil litigation in the United States courts was resolved against the plaintiff in Bi v Union Carbide Chemicals and Plastics Co. The Second Circuit Court of Appeals dismissed the claims based on lack of standing. Excerpts from an American law journal article regarding both the Bi case and the original dismissal on the basis of forum non conveniens in the original suit by the government in 1986 follow.

Highet, Kahale III, & Vollmer; comment, 88 American Journal of International Law 126 (1994) passed an interesting comment regarding this aspect of the Bhopal Gas Disaster.

‘Faced with new attempts to assert claims in the United States arising from the Gas leak disaster in Bhopal, India, after the termination of comprehensive proceedings in India, the court gappled for a theory to put an end to litigation. It ultimately reached the right results, dismissing the claims, but for the wrong reasons, resting its decision on standing doctrine and using an unfortunate mix of politics and policy to get there. The court ignored alternative rationales, such as recognition of foreign country judgment and act of state doctrine, which would have permitted it to place the result on a sounder legal footing.

Affirming the dismissal of the complaints was wise and correct. Affirming on standing grounds with soupcon of jingoistic civics and a splash of act of state was an approach that could have been improved. The Second Circuit’s approach in Bi faltered in at least three significant ways.

First, The Second Circuit explicitly grounded its decision on standing although the case and the court’s reasoning have nothing to do with traditional standing doctrine. Standing is a matter of US constitutional law that turns on several factors, including the requirement that the plaintiff suffer injury in fact. The doctrine does not depend on the type of government a foreign country has or the politics underlying the act of state doctrine. The appeals court understands this, of course, and therefore did not even venture a standard analysis of standing.

Second, the Court of Appeals engaged in the problematic exercise of appraising another country’s government. It reviewed the political system in India, the independence of its judiciary and the guarantees of individual rights. Presumably it did so because the evaluation was relevant to its decision to defer to the Bhopal Act, and fortunately for India, the Indian system measured up. The court patronizingly decreed that ‘India is a democracy.’

The Bi court should not have concluded this review. Few US actions are likely to cause greater foreign resentment and offence than the superficial explanation by a federal court of the structure of a foreign country’s government to determine whether it comports with our values. Such an explanation is laden with value judgments and implies that systems of government differing from ours are not as worthy and do not produce laws that deserve our respect. It is also inconsistent with fundamental principles of international law and relations: the sovereign equality of nations and each state’s sovereign authority to govern its territory. The United States is part of a plural world. Just as we expect tolerance and accommodations of our ways, so other nations generally deserve the same treatment from us.

Notes And Questions

In the article above the authors describe the US Court of Appeals’ tone as ‘patronizing’. Justice Seth felt patronizes. Yet, what the American courts seemed to have done with the government of India’s efforts to litigate the Bhopal claims in the United States is to give full and fair respect to the Indian courts’ abilities to remedy the situation. Why does this seem patronizing to the authors and the Justice? Is it?

The party with the greatest lack of faith in the Indian courts through has always appeared to be the Indian government. After all, it was the government, as plaintiff, that initially tried to have the entire case heard in the United States. What does this say about the relationship between the executive and the judiciary in India? Or was the government of India merely shopping for a forum that could give it the largest tort damages?

Among the many reasons that various plaintiffs have continued to bring lawsuits in the United States are the large damages that American judges often give and traditionally have not been a topic of increased security, criticism and proposals for domestic reform. Might it therefore be wiser to maintain a system in which damages are kept to a proportional level?

Another reason advanced for preferring the American court system is the experience of the American courts in coping with complex mass tort action like Bhopal. Yet, how is another country’s system supposed to develop if cases are tried elsewhere? The Indian Courts took a long and circuitous path to the final settlement and the victims continued to suffer all the while. Is there a better way to develop the judicial system in developing countries? What about advisory judges from more developed countries?

The Government

The role of the Indian Government in the Bhopal disaster was that of an actor with multiple parts. The government was keen that transnational corporations such as Carbide set up shop in India, in the hope of creating jobs and drawing new technology and industry into this rapidly developing country. The government or its agents were also responsible for overseeing the construction and management of the Carbide plant, ensuring that applicable health and safety standards were met and maintained. Thus, its negligence in this role potentially could have made the government a defendant in the ensuing litigation, although this never transpired. Then with the passage of the Bhopal Act, the government named itself as sole plaintiff in all litigation arising from the gas disaster, a role that created enormous conflicts of interest. Finally, as a sovereign nation responsible for the welfare of the citizens, the Indian Government has and continues to have the duty to care for its citizens and act appropriately, through legislation, regulation and enforcement, to ensure that such a disaster never happens again. One newspaper reporter captured some of the conflicts inherent in the Indian government’s many roles:

JOHN RETTIE; OUT OF SIGHT, OUT OF MIND, The Gaurdian, 14 March 1994

In two articles written just after (the) settlement and never seriously challenged, the Supreme Court lawyer Prashant Bhushan said: “The government has capitulated to Union Carbide for reasons that have nothing to

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